Citation Nr: 1125478 Decision Date: 07/06/11 Archive Date: 07/14/11 DOCKET NO. 05-27 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a urinary bladder disorder, to include as secondary to service-connected prostatitis. ATTORNEY FOR THE BOARD David Traskey, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from September 1953 to September 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of June 2004 by the Department of Veterans Affairs (VA) Nashville, Tennessee, Regional Office (RO). The Veteran's claim was previously before the Board in March 2008, August 2009, and June 2010 and was remanded for additional evidentiary development, to include obtaining outstanding VA records, affording the Veteran a VA examination, and obtaining an addendum to this examination. The requested development was completed as directed and the Veteran's claim is before the Board for final appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran's claim of entitlement to service connection for hearing loss was also before the Board in June 2010 and remanded at that time for additional evidentiary development. Following the completion of the requested development, the Appeals Management Center (AMC) in Washington, D.C., issued a rating decision in April 2011 in which it granted the Veteran's claim for hearing loss. To date, the Veteran has not expressed disagreement with the disability rating or effective date assigned. Therefore, this issue is no longer before the Board for appellate consideration. FINDING OF FACT The Veteran currently has a urinary bladder disability and credibly reports urinary symptoms in service and a continuity of urinary symptoms since service. CONCLUSION OF LAW Service connection is warranted for a urinary bladder disorder. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his currently diagnosed urinary bladder disorder is related to his period of active service or in the alternative, secondary to his service-connected prostatitis. Establishing Service Connection Service connection may be granted for disease or injury incurred in or aggravated by service. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. 38 C.F.R. § 3.310(a). According to Allen v. Brown, 7 Vet. App. 439 (1995), secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). The provisions of 38 C.F.R. § 3.310 were amended in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amended regulation provides that any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the non-service-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non-service-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the United States Court of Appeals for Veterans Claims (Court) ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection may be made. Allen, 7 Vet. App. 439. This had not been VA's practice, which suggests that the recent changes amount to a substantial change. Allen, 7 Vet. App. at 447-449. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the Veteran. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. Factual Background and Analysis The Veteran in this case is service-connected for prostatitis. The RO initially evaluated this disability as non-compensably disabling, effective October 1, 1973. See December 1973 rating decision. Subsequent rating decisions increased the Veteran's disability evaluation for prostatitis to 20 percent (effective September 11, 2003) and 40 percent (effective September 2, 2005 ). See June 2004 and November 2005 rating decisions. The assignment of these particular ratings took into consideration the Veteran's diagnosis of and treatment for benign prostatic hypertrophy (BPH) and overactive bladder, which ultimately resulted in a transurethral resection of the prostate gland (TURP). Id. Service treatment records (STRs) associated with the claims file reflect a diagnosis of and treatment for chronic prostatitis and difficulty voiding. Post-service objective medical evidence of record reflects that the Veteran has a currently diagnosed urinary bladder disorder, to include neurogenic bladder, bladder outlet obstruction, bladder neck contracture (status-post dilation), overactive bladder, and incontinence. See VA treatment records and examination reports dated November and December 2003, February 2004, March, September, and November 2005, October 2008, and May and July 2010. The Veteran has also reported a continuity of voiding problems since service and these reports are reflected in the objective medical evidence of record. The controlling question in this case, therefore, is whether there is a relationship between the Veteran's currently diagnosed urinary bladder disorder and his period of active service and/or a service-connected disability. See Hickson, 12 Vet. App. at 253. Associated with the claims file is a VA Compensation and Pension (C&P) genitourinary examination dated December 2009. A physical examination revealed evidence of lower urinary tract symptoms secondary to chronic BPH. The examiner described the Veteran's bladder as "poorly functioning" and "partially decompensated," and attributed these symptoms to the Veteran's BPH and the aging process. In the absence of chronic prostatitis, the examiner concluded that it was "less likely than not" that the Veteran's bladder symptoms were related to service. A different examiner provided an addendum to the C&P examination report in January 2010. This examiner noted that the Veteran's prostatitis, for which he was already service-connected, was unrelated to herbicide exposure. VA obtained second addendum in July 2010 because neither the December 2009 VA opinion nor the January 2010 addendum addressed the issue of secondary service connection. The July 2010 examiner reviewed the claims file and noted that the Veteran's past medical history was significant for BPH, status-post TURP, and urge urinary incontinence since the TURP procedure. According to the examiner: [The Veteran's] incontinence by history seems to be related to urgency since his TURP procedure, and certainly we do see men with longstanding bladder outlet obstruction from BPH develop detrusor instability that is 'unmasked' once their obstruction is relieved. This detrusor instability could explain why he voids small volumes and has not been able to provide a voided volume greater than 150 cc. Alternatively, he could have some component of stress urinary incontinence related to his TURP procedure. Either way, it is at least as likely as not that his urinary incontinence is related to his history of BPH and bladder outlet obstruction. First, the Board points out that the Veteran had voiding problems in service, including frequency, and he has consistently reported a history of urinary symptoms since service. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997)). The Veteran is competent to make such statements and the Board ultimately finds these statements credible and probative in light of the evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). The Board recognizes that the medical opinions obtained in this case have not been positive, however, none of the examiners addressed the Veteran's credible, competent, and probative assertions that he has had urinary symptoms since service. Accordingly, in weighing the statements of the Veteran and the medical opinions, the Board finds that the evidence is at least in equipoise. The opinions are not entitled to any greater weight than the Veteran's statements because the examiners failed to consider his statements regarding continuity of symptoms. Accordingly, service connection is warranted. Accordingly, the Veteran's claim of service connection for a urinary bladder disorder is granted. The Board has applied the benefit-of-the-doubt doctrine in reaching these conclusions. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102 (West 2002); Gilbert, 1 Vet. App. at 54-55; Alemany v. Brown, 9 Vet. App. 518 (1996). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist appellants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). The Board is granting in full the benefit sought on appeal in this case. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for a urinary bladder disorder is granted. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs